Whitney v. Shufelt

Headnote

Plaintiff’s attorney is not in default for not noticing a cause for trial, where there is not sufficient time, between joining of the issue and the commencement of the circuit, to serve a notice Try mail, the defendant’s attorney residing distant from plaintiff’s attorney, to wit, in another county. Plaintiff’s attorney is not bound to make personal service in such a case.

There may be cases where a party would be bound to make personal service, as where he asks relief from a regular default, or seeks to take advantage of a technical irregularity without merits

Motion by defendant for judgment as in case of nonsuit.

The venue in this cause was in Columbia. Issue joined 23d February, 1846. A circuit was held in Columbia, commencing on the 16th of March, 1846. Plaintiff’s attorney did not notice the cause for trial, for the alleged reason that there was not sufficient time left to serve a notice by mail, after joining of the issue. Defendant’s attorney resided at Yalatia, Columbia county, and plaintiff’s attorney resided at Albany —and there being but twenty-one days from the time of joining issue to the commencement of the circuit. Plaintiff’s attorney stated that he had no correspondent or agent at Yalatia, by whom he could make personal service on defendant’s attorney.